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  • Catching up with consumer realities: The need for legislation prohibiting unfair terms in consumer contracts

    Author(s)
    Howell, Nicola
    Griffith University Author(s)
    Howell, Nicola
    Year published
    2006
    Metadata
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    Abstract
    In the policy debate about the need for legislation to prohibit the use of unfair terms in consumer contracts, substantive unfairness is often distinguished from procedural unfairness. Current consumer protection laws appear to offer the potential for relief on substantive unfairness grounds alone, however, a review of cases involving credit contracts shows this potential is rarely realised. This reluctance to provide relief for substantive injustice reflects a preoccupation with freedom and certainty of contract, the notions underpinning classical contract theories. As a class, consumers are vulnerable in the marketplace, ...
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    In the policy debate about the need for legislation to prohibit the use of unfair terms in consumer contracts, substantive unfairness is often distinguished from procedural unfairness. Current consumer protection laws appear to offer the potential for relief on substantive unfairness grounds alone, however, a review of cases involving credit contracts shows this potential is rarely realised. This reluctance to provide relief for substantive injustice reflects a preoccupation with freedom and certainty of contract, the notions underpinning classical contract theories. As a class, consumers are vulnerable in the marketplace, and they do need protection from substantively unfair terms. A new framework for regulating consumer contracts is needed, one that relies less on classical contract theories and takes the reality of consumer contracting and consumer behavior as its starting point. Unfair contract terms legislation will be a step on the path towards this new framework.
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    Journal Title
    Australian Business Law Review
    Volume
    34
    Issue
    6
    Subject
    Accounting, Auditing and Accountability
    Law
    Publication URI
    http://hdl.handle.net/10072/14040
    Collection
    • Journal articles

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